In my last post, I mentioned that the question of the compatibility of mandatory retirement ages with EU law was pending before the European Court of Justice (ECJ). The Court has now handed down its decision, upholding the principle of mandatory retirement ages, but requiring them to be justified on a high standard of proof.
The case, C-388/07 R (on the application of The Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform, was a reference from the High Court (Queen’s Bench Division, Administrative Court), for a preliminary ruling concerning the interpretation of Council Directive 2000/78/EC (pdf) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p16), which had been transposed in the UK by the Employment Equality (Age) Regulations 2006 (SI No 1031 of 2006). The Directive and the Regulations provided for a general principle of non-discrimination on the grounds of age. However, they allowed for exceptions that are objectively and reasonably justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary (see, eg, Article 6(1) of the Directive). On this basis, Regulation 30(2) allowed for a derogation from that general principle in the context of compulsory retirement at 65. Age Concern (the UK’s equivalent of Age Action) challenged that derogation on the grounds that the derogation did not meet the requirements of Article 6(1), but the ECJ rejected that challenge:
… Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national court to ascertain whether the legislation at issue in the main proceedings is consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States’ discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim. … Article 6(1) … imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification. …
The ECJ held that mandatory retirement provisions do not, per se, infringe the Directive; but the Court did emphasise that the provisions had to be justified on the basis of high standard of proof. As a consequence, the matter will now return to the UK courts, to determine whether the Regulations can in fact be justified.
The Department of Justice, Equality and Law Reform is of the view that Irish law is already in compliance with the Directive. Presumably, this is a reference to the Employment Equality Act, 1998 (also here) and the Equal Status Act, 2000 (also here). Section 6(2)(f) of the 1998 Act and section 3(2)(f) of the 2000 Act prohibit discrimination on the grounds of age; in particular, section 34 of the 1998 Act allows for different compulsory retirement ages. I suspect, therefore, that the outcome of the Age Concern case will be examined with interest by the Department of Justice not only in London but also in Dublin.
Some news coverage:
BBC: EU judges back UK retirement age
Jurist: Europe court rules UK mandatory retirement law not discriminatory
OUT-LAW.com: Forced retirement due to age can be justified, rules ECJ
Times Online: Hopes dashed as judges support compulsory retirement at 65; European judges order ministers to justify retirement age of 65.